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PTO ruling gives BlackBerry users hope

Feds thumb away as the patent case drags on

By Rob Thormeyer

Mar 03, 2006

"I don't think anyone in the government has a whole lot to be worried about."'Alan Webber, Forrester Research

Although the threat of an injunction still looms, federal users of the popular BlackBerry devices are breathing easier after a federal judge decided not to impose an immediate shutdown of the wireless service for their beloved handhelds.

The court's decision came after the Patent and Trademark Office rejected the last of seven infringement claims against BlackBerry developer Research in Motion Inc. of Waterloo, Ontario.

Federal courts so far have ruled the opposite way, in favor of the legal challenges brought by patent holder NTP of Arlington, Va.

And while government users reportedly would be exempt from a shutdown, any delay in an injunction gives parties more time to figure out just how such an exclusion could be enforced, analysts said.

'I don't think anyone in the government has a whole lot to be worried about,' said Alan Webber, a senior analyst at Forrester Research Inc. of Cambridge, Mass. 'We're telling our government clients, 'Until you see an injunction, I wouldn't worry about it.' '

Settlement expected

Most analysts expect the parties to settle the case, although they also say RIM's hand is now strengthened because of PTO's actions.

Neither company would comment on any settlement talks.

But federal workers need to be aware that an injunction still is possible. RIM would need to figure out how to exclude feds from any shutdown. And even if federal employees are exempt, federal contractors would lose their service.

NTP claims'and the federal courts have largely agreed'that RIM willfully infringed upon NTP's patents when it started marketing the BlackBerry devices in the late 1990s.

The judge hearing the standoff, James Spencer of the 4th U.S. Circuit Court of Appeals in Richmond, Va., rejected NTP's request for an immediate injunction during oral arguments late last month.

Spencer did not take any official action during the Feb. 24 hearing, and could issue a decision in the case at any time, his office said.

Federal, state and local governments would be exempt from any injunction, although the parties involved have not agreed on how this could occur. RIM said it has a workaround plan to let all BlackBerry customers continue using their devices, but, again, few are sure how this will work.

Meanwhile, PTO, in a series of decisions last month, rejected the last of NTP's claims that RIM violated its patents. NTP can'and likely will'appeal the decisions, which could take months.

This, combined with the lack of an immediate injunction from Spencer, means the government can rest assured that its concerns will be taken care of, Webber and others said.

Carmi Levy, senior research analyst at the consulting firm Info-Tech Research Group of London, Ontario, said PTO's actions have altered the nature of the case.Although Spencer has said he will not be influenced by PTO, the latest decisions would be hard to ignore, Levy said. 'The PTO is changing the game,' he said. 'Spencer realizes that it is not simply a case law issue, it's a political issue and it's an economic issue.'